"Upon all the circumstances of this case, I am of opinion,
"1. That Mr. Smith was not sheriff of Otsego when he received and forwarded the ballots.
"2d. That the ballots delivered by the deputy of Mr. Smith cannot be legally canvassed.
"The direction of the law is positive, that the sheriff shall put all the enclosures into one box. How far his inattention or misconduct in this particular shall be deemed to vitiate the ballots of a county, appears to be left to the judgment of the canvassers. Were the ballots of this county subject to no other exception than that stated in the third and fourth questions, I should incline to think it one of those cases in which the discretion of the canvassers might be safely exercised, and that the ballots contained in the boxes might be legally canvassed; those in the separate package do not appear to be subject to such discretionary power; the law does not permit them to be estimated. But the extent to which this power might be exercised in cases similar in kind, but varying in degree, cannot be precisely defined. Instances may doubtless be supposed, in which sound discretion would require that the whole should be rejected.
"Clinton.——To the question relative to the ballots of this county, it may suffice to say, that verbal and written deputation by a sheriff are, in law, considered as of equal validity, particularly when it is to perform a single ministerial act.
"Tioga.——it is said that a deputy may make a deputy to discharge certain duties merely ministerial; but, considering the importance of the trust in regard of the care of the ballots, and the extreme circumspection which is indicated in the law relative to elections, I think that the ballots of this county cannot, by any fiction or construction, be said to have been delivered by the sheriff; and am of opinion that they ought not to be canvassed.
"AARON BURR."
The opinion of Rufus King in this case was concurred in by Stephen
Lush, T. V. W. Graham, and Abraham Van Vechten, of Albany; Richard
Harrison, John Lawrence, John Cozine, Cornelius J. Bogart, Robert
Troup, James M. Hughes, and Thomas Cooper, of New-York.
The opinion of Colonel Burr was sustained by Pierpont Edwards of Connecticut, Jonathan D. Sergeant, of Philadelphia, Edmund Randolph, of Virginia, United States attorney-general, Zephaniah Swift, Moses Cleaveland, Asher Miller, David Daggett, Nathaniel Smith, and Dudley Baldwin. These opinions were procured by Colonel Burr, as appears from the private correspondence on the subject.